future legislative control is far different In City of Woodburn v. Public Service from conferring indefinite powers by impli- Commission, 82 Or. 114, 161 Pac. 391, L. R. cation. A. 1917C, 98, the court said: To give the above section of the Consti'.. "When examining the contention urged by the tion a construction that might and certainly municipality, we must not lose sight of the fact frequently would bring about situations un- that the right to regulate rates by changing der which public service corporations en- them from time to time as the welfare of the joyed rights in conflict wth the general well-public may require is essentially a police powbeing of the state would render it inconsistent with section 4, art. 17, of such Constitution, which specifically provides that "The exercise of the police power of the state shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the state." The state of Pennsylvania has constitutional provision (Const. art. 17, § 9) the same as section 3, art. 10, supra. In a case on all fours with this one, except that street car rates were involved, being the case of City of Scranton v. Public Service Commission, 268 Pa. 192, 110 Atl. 775, the court declared: "While the constitutional provision requiring the consent of a municipality to the construction of a street railway within its limits is clear and can have but one meaning, it must be read in connection with the equally clear third section of article 16 of the Constitution, which declares that ""The exercise of the police power of the state shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the state.' "Street passenger railways have become necessities. * Though this is so, they cannot be operated in any municipality without its consent. With such consent they may be, and, as between the local authorities and the railway companies, there may be attached to it terms and conditions which must be performed by the companies, but a municipality may not annex such terms to its consent as will deprive the commonwealth of its inherent police power to see that a street passenger railway company is not prevented from serving the public by the municipality's enforcement of conditions in a consenting ordinance that have become impossible of performance. What may have been a reasonable rate of fare at the time of the passage of a consenting ordinance may, under changed economical conditions, become confiscatory, and a street passenger railway company may not be able to serve the public on account of insufficient revenues, based upon the fare fixed in the ordinance. When such situation arises, as it has arisen and will arise again, there must be relief somewhere to the public, and it lies in the police power of the state, which is never to be abridged nor bartered away." See, also, City of San Antonio v. San Antonio Public Service Co., supra. er; and, since the right to regulate rates is an inherent element of sovereignty, when seeking to ascertain whether this part of the police power has been conferred upon the city, either with or without limitation, we are constantly governed by the rule that the delegation of the sovereign right to regulate rates must be clear and express, and all doubts must be resolved against the city. Home Telephone Co. v. Los Angeles, 211 U. S. 265, 29 Sup. Ct. 50, 53 L. Ed. 176; Milwaukee Elec. Ry. v. Wisconsin R. R. Com., 238 U. S. 174, 35 Sup. Ct. 820, 59 L. Ed. 1254; Benwood v. Public Service Commission, 75 W. Va. 127, 83 S. E. 295, L. R. A. 1915C, 261; State ex rel. Webster v. Superior Court, 67 Wash. 37, 120 Pac. 861, L. R. A. 1915C, 287, Ann. Cas. 1913D, 78; City of Manitowoc v. Manitowoc & Northern Traction Co., 145 Wis. 13, 129 N. W. 925. Quoting from Charleston Consol. Ry. & Lighting Co. v. City Council, 92 S. C. 127, 75 S. E. 390: ""The state's power to regulate by compulsion the charges of public service corporations is one of such vast and increasing importance to the public that the courts will not attribute to the state the intention to part with it or to delegate it unless the intention is clearly and unmistakably expressed.'" We are of the opinion that section 3, art. 10, gave to plaintiffs no police power whatsoever. We should so hold even in the absence of section 4, art. 17, as we agree that any delegation of police power must be clear and express, and certainly, in the light of section 4, art. 17, we could not hold that the people intended, by section 3, art. 10, to do by implication the very thing which, by section 4, art. 17, they forbid the Legislature from doing. We are therefore of the opinion that, while plaintiffs had the right, when granting permission to the company to establish lines within their territory, to impose conditions which, when accepted, became binding contracts, such conditions must not conflict with the provisions of section 4, art. 17, of the Constitution. Southern Iowa Electric Co. v. City of Chariton, 255 U. S. 539, 41 Sup. Ct. Rep. 400, 65 L. Ed. -; City of Lead, etc., v. Western Gas & Fuel Co., 44 S. D. handed down herewith. 184 N. W. 244, It follows that the Board acted within its jurisdiction in making the orders sought to be reviewed, and that the present proceedings should be dismissed. They are dismissed, at plaintiffs' costs. (184 N.W.) OLDHAM et al. v. EGAN et al. (No. 4906.) premises, conveying the same to the plain. tiffs free and clear of incumbrances, except as above mentioned; that in the event of (Supreme Court of South Dakota. Aug. 31, the plaintiffs' failure to pay said purchase 1921.) Specific performance 114(1)-Complaint for specific performance of contract to convey real estate held not sufficiently definite to state cause of action on any theory. In an action for specific performance of a contract and bond for a deed, the complaint, which did not allege whether or not defendants had delivered a deed, but only that defendant wholly failed to comply with the terms of the contract and bond, "and" wholly failed to execute and deliver a good and merchantable title, was so indefinite and uncertain that it failed to state a cause of action, since, if he wholly failed to comply with the terms of the contract and bond, he necessarily failed to deliver a deed, in which case the action might be a local action in equity to compel specific performance, while, if a deed had been delivered which did not convey merchantable title, the remedy would be a transitory action at law, based on a breach of the covenants of warranty in the deed and provisions of the bond guaranteeing the conveyance of a merchantable title. money as above stated, they should forfeit any money paid upon said contract, and any rights in and to said real estate, unless the said Egan should otherwise elect. The said complaint also further contained the allegations that said Egan was the owner of said land; that the consideration agreed to be paid for the said land was an adequate consideration; that at the time of the execution of said contract said plaintiffs were and had at all times been ready and willing to comply with the terms of said contract; that the said Egan was unable to comply with the terms of said contract and furnish a good and marketable title to said premises before May 1, 1919, and thereafter, as an inducement to these plaintiffs to deliver the notes and mortgages therein referred to, and as an inducement to plaintiffs to pay the said $28,000 then due, the said defendants executed and delivered to the plaintiffs an other contract in the nature of a bond, in substance reciting and providing that, whereas on the 21st day of April, 1919, the said Egan and these plaintiffs entered into the Appeal from Circuit Court, Tripp County; said agreement herein before alleged, whereN. D. Burch, Judge. Action by Harold A. Oldham and others against Geo. W. Egan and others. From an order overruling a demurrer to the complaint, defendants appeal. Reversed without prejudice to filing an amended complaint. Kirby, Kirby & Kirby, of Sioux Falls, for appellants. Hannett & Hannett, of Winner, and W. J. Hooper, of Gregory, for respondents. in and whereby the said Egan, together with his codefendants, bound themselves and agreed and guaranteed to the plaintiffs that the said Egan should, on or before the 2d day of February, 1920, deed said lands to plaintiffs, and furnish to said plaintiff's an abstract of title to the said premises showing perfect merchantable title in him, and therefore bound themselves and agreed to warrant the title to said real property to the full extent of the warranty contained in the McCOY, J. From an order overruling a said deed, conveying the same from said demurrer to the complaint defendants ap- Egan to plaintiffs, with the exception only peal. In substance the complaint states that as to the incumbrance of $100,000 placed on the 21st day of April, 1919, the defend- thereon by the plaintiffs in their said mortant Egan and plaintiffs entered into a con- gage to said Egan; that immediately upon tract whereby the said Egan agreed to sell the execution of said bond the said plaintiffs and convey to plaintiffs certain described delivered to said Egan the notes and mortreal estate for the purchase price of $143,- gages referred to in said contract, and said 000, payable as follows: $15,000 cash; $28,- bond, and also paid to him the sum of $28,000 May 1, 1919; and the balance of $100,000 therein specified; that the said defend000 to be paid by notes, secured by first mort-ants have wholly failed to comply with the gages on the said real estate, payable May 1, 1929; that it was further mutually agreed that on failure of title for any cause, or should the government refuse to approve the original sale or fail to issue patents for said land, then said contract should be canceled and settled by the prompt return of all money paid by the purchasers; that upon compliance with the terms of said contract by plaintiffs the said Egan would make, execute, and deliver to said plaintiffs a good and sufficient warranty deed and abstract, showing perfect title to the above described terms of said contract and said bond, and have wholly failed to execute and deliver to the plaintiffs a good and merchantable title for said premises, or any part thereof; that the plaintiffs have paid to said Egan under said contract the sum of $43,000, and also the sum of $3,000 interest on said notes and mortgages; that the said Egan at the time he executed said contract and said bond well knew that he would not comply with the terms of said contract and furnish good and merchantable title as agreed to be done, which the plaintiffs did not know, but relied For other cases see same topic and KEY-NUMBER in all Key-Numbered Digesis and Indexes upon the representations made by the said Egan, believing the same to be true; that at the time of the breach of said contract and said bond the said land was reasonably worth $125 per acre; that before the commencement of this action the said plaintiff demanded of said defendants that they comply with the terms of said contract and furnish a good merchantable title to said land, but that they have failed and refused so to do. Plaintiff demanded judgment for specific performance, and on failure thereof a recovery of all payments and said notes. To which complaint the defendants interposed a demurrer on the grounds: First, that several causes have been improperly united; second, that said complaint does not state facts sufficient to constitute a cause of action in favor of said plaintiffs and against said defendants. We are of the opinion that this complaint is very indefinite and uncertain, in that it fails to allege whether or not said Egan has delivered to plaintiffs a deed for said lands. The only portion of said complaint that might refer to a delivery of a deed is as fol lows: "That said defendants have wholly failed to comply with the terms of said contract and the said bond, and have wholly failed to execute and deliver to plaintiffs a good and merchantable title for said premises or any part thereof." Egan agreed both by the bond and the contract to deliver a deed of perfect merchantable title. If, as alleged, he wholly failed to comply with the terms of the contract and bond, he necessarily failed to deliver a deed. If he wholly failed to execute and deliver to plaintiff a good and merchantable title, he might have executed and delivered a deed of such title as he had, although the same might not have been merchantable. The clauses of the complaint are connected by the disjunctive "and," and might properly be construed as being independent of each other. If no deed at all has been delivered, the action might properly be a local action in equity to compel specific performance of the contract, and to compel the return of the payments and notes and mortgages. On the other hand, if a deed has been delivered, but the same does not convey merchantable title, then the remedy would be a transitory action at law, based on a breach of the cove nants of warranty in the deed, and on the provisions of the bond guaranteeing the conveyance of a merchantable title. By reason of such indefiniteness in the allegations of the complaint we are constrained to the view that the demurrer should have been sustained on the ground alone that the same does not state facts sufficient to constitute a cause of action on any theory. out prejudice to the serving and filing of an amended complaint in harmony with this decision. WHITING, J., not sitting. OLDHAM et al. v. REILEY et al. (No. 4905.) (Supreme Court of South Dakota. Aug. 31, 1921.) Appeal and error 1043(8) Denial of change of venue not prejudicial, where complaint on former appeal held not to state cause of action. Where, on a former appeal, the Supreme Court held a complaint for specific performance of a contract to convey real estate so indefinite and uncertain that it failed to state a cause of action on any theory, an order of the trial court, on retrial, denying a motion for change of venue to the county in which defendants were served with summons, must be affirmed, whether the complaint, stated a cause of action for damages for breach of contract only, in which case defendants would be entitled to such change, under Rev. Code 1919, § 2327, or whether the action was for specific performance of a contract to convey real property situated in the county where the venue was laid, in which case the action would be triable in such county, under section 2325 subd. 1; there being no prejudicial error. Appeal from Circuit Court, Tripp County; N. D. Burch, Judge. Action by Harold A. Oldham and others order denying their motion for a change of against Eugene Reiley and others. From an venue, defendants appeal. Affirmed. Kirby, Kirby & Kirby, of Sioux Falls, for appellants. Hannett & Hannett, of Winner, and W. J. Hooper, of Gregory, for respondents. SMITH, J. Appeal from an order denying appellant's motion for a change of venue from Tripp county to Minnehaha county. It is appellant's contention that the complaint states a cause of action for damages for breach of contract only, and that, as defendants were served with summons in Minnehaha county, they were entitled to a change of place of trial to that county under section 2327, Rev. Code 1919, while respondents contend that the action is for specific performance of a contract to convey real property situated in Tripp county, where the venue of the action is laid, and that the action is triable in that county under subdivision 1, § 2325, Rev. Code 1919. In the same action a demurrer was filed to the complaint, which was overruled by the The order appealed from is reversed, with- trial court, from which ruling an appeal was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (184 N.W.) taken, in which this court holds that the complaint is so indefinite and uncertain that it fails to state a cause of action on any theory. In such a situation appellant has failed to show prejudicial error, and the order of the trial court must be affirmed. For a statement of the pleadings see Harold A. Oldham et al. v. Geo. W. Egan et al., 184 N. W. 249. WHITING, J., not sitting. MCDOWELL v. JAMESON et al.* Mining Company based its claim to title upon certain execution sales under judgments in favor of one Rogers against one Crabtree, a former owner of said real estate. The Deadwood Gulch Mining Company claims to be the successor in interest by virtue of mesne conveyances from the said Crabtree, said former owner. From findings and judgment in favor of the defendant Cutting Mining Company, the plaintiff and the defendant Deadwood Gulch Mining Company separately appeal. Both appellants, however, present their respective appeals by a single brief and appeal record. Appellants assign the insufficiency of the evidence to sustain the findings of fact, and (Supreme Court of South Dakota. Aug. 31, the insufficiency of the findings of fact to 1921.) 1. Execution 245- Assignee of mortgagee and successor of former owner estopped by laches from questioning validity of execution sale. sustain the conclusions of law and the judgment. It is conceded by all the parties that they derive their claim of right and title from a common source. It appears that one Crabtree on and prior to the 6th day of In an action by the assignee of a mortgagee January, 1904, was the owner and in posof certain mining claims to foreclose the mort- session of said real estate, and that at said gage thereon and determine adverse claims of title to the property, defendant basing its claim time certain judgments in favor of one Rogof title on execution sale under judgments, ers were duly entered and docketed against plaintiff assignee and the successor in interest said Crabtree in the circuit court of Lawof the former owner of the property held es- rence county; that thereafter, on the 7th topped by their laches from maintaining the ac- day of November, 1907, one Lee, then claimtion, having stood by while extensive perma-ing to be the owner in fee and in possession nent improvements were made on the property. of said mining claims, executed and deliver2. Appeal and error 854(2)-Proper judged a certain real estate mortgage upon said ment will not be reversed because based on wrong reason. Where the judgment of a court is right according to the facts found, the appellate court will not reverse on the ground that the trial court has assigned an erroneous or other reason therefor. Appeal from Circuit Court, Lawrence County; James McNenny, Judge. Action by James McDowell against William R. Jameson and the Cutting Mining Company, impleaded with the Deadwood Gulch Mining Company. From a judgment for the Cutting Mining Company, plaintiff and the impleaded defendant appeal. Judgment and orders affirmed. mining claims to secure the payment of $50,000, payable five years after said date to the Western Investment Company; that thereafter the said Western Investment Company assigned the said mortgage and the indebtedness secured thereby to one Shaeffer, who thereafter assigned the same to the appellant McDowell. It is conceded by respondent that, unless the respondent and its predecessors in interest acquired title and the right to possession and ownership of said premises under and by virtue of certain tax deeds, execution sales, and sheriff's deeds issued thereunder, under certain judgments in favor of one Rogers and against said Crabtree, entered and docketed in Lawrence county on the 6th day of January, 1904, and under a certain other judgment quieting title in said Rogers, entered and docketed in 1912 in the circuit court of said county, the plaintiff, appellant, and the defendant Deadwood Gulch Mining Company should prevail in this action. Respondent also pleaded McCOY, J. This action was instituted by that the appellants were guilty of laches, plaintiff, as assignee of the mortgagee, to and by reason thereof appellants should be foreclose a certain real estate mortgage and estopped from making any claim of title or to determine adverse claims of title to cer- lien to the said premises adverse to respondtain real estate, consisting of mining claims ent. Therefore the real material issue first situated in Lawrence county. Two defend- to be determined in this case is whether or ants, corporations, namely, Cutting Mining not the evidence and findings are sufficient Company and the Deadwood Gulch Mining to sustain the judgment in favor of the deCompany, interposed answers to the plain- fendant Cutting Mining Company on the tiff's complaint. The defendant Cutting ground that the appellant plaintiff and apFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied November 22, 1921. S. K. Grigsby and Davis, Lyon & Bradford, all of Sioux Falls, for appellant McDowell. Gaffy, Stephens & McNamee, of Pierre, for appellant Deadwood Gulch Mining Co. Martin & Mason, of Deadwood, for respondent. pellant Deadwood Gulch Mining Company were guilty of laches. [2] The conclusions of law made by the trial court do not base the judgment on the [1] The trial court, from the findings of conclusion that the appellant Deadwood fact, concluded that the appellant plaintiff Gulch Mining Company was guilty of laches, was estopped to maintain this action by rea- but rendered judgment against said appelson of laches. We are of the opinion that lant on the theory that the judgment in this conclusion is fully sustained by the the action to quiet title rendered in favor facts. It appears that the respondent Cut- of said Rogers in 1912 was a bar to the ting Mining Company is the successor in said appellant claiming title in this action. interest of said Rogers; that Rogers and the However, the same facts and same evidence Cutting Mining Company have been in the and same rules and principles of law in reopen, notorious, continuous, and exclusive lation to laches and estoppel apply as well possession of said premises at all times since to the Deadwood Gulch Mining Company as 1911, in good faith claiming to be the owners to the appellant McDowell. If McDowell is thereof under the sheriff's deeds issued on estopped, so also is the Deadwood Gulch execution sales of said premises to said Rog- Mining Company. Where the judgment of ers under and by virtue of judgments in his a court is right according to the facts found, favor against said Crabtree, the former own- the appellate court will not reverse the same er; that from 1911 until the beginning of on the ground that the trial court has asthis action in 1919 the said Rogers and said signed an erroneous or other reason therefor. Cutting Mining Company paid all taxes as- In re Yankton-Clay County Drainage Ditch, sessed and levied on said premises; that at 38 S. D. 168, 160 N. W. 732. When it is the time said Rogers took possession of found and determined that appellants are said premises the same were reasonably estopped to make and set up adverse claims worth and of the value not to exceed $6,000; of title and liens against the respondent that said Rogers and said Cutting Mining Cutting Mining Company, it then becomes Company have during the time of such pos- unnecessary and unavailing to pass upon session made permanent improvements and any of the other assignments of error relatperformed labor by constructing mining tun-ing to the regularity of the procedure by nels, shafts, and crosscuts, and other mining which any of these parties acquired their improvements and machinery, on said premis- rights. es, in value exceeding $70,000, and thereby increased the value of said mining claims to over $200,000. All of the appellants of necessity must have had knowledge and be charged by law with notice of such possession by said Rogers and Cutting Mining Company, and of the said improvements and labor performed on said premises by them, and also of the claim of ownership made by them under such execution sales. In Shelby (Supreme Court of South Dakota. Aug. 31, v. Bowden, 16 S. D. 531, 94 N. W. 416, Farr The judgment and orders appealed from, under both appeals, are affirmed, WHITING, J., not sitting. MURPHY v. SIOUX FALLS SERUM CO. (No. 4806.) 1921.) cause of action against manufacturer of serum. In an action for death of plaintiff's hogs, caused by poisonous condition of serum manu 2. Druggist 10-Prima facie case made against serum manufacturer. v. Semmler, 24 S. D. 290, 123 N. W. 835, and 1. Druggist 10-Complaint held to state Kenny v. McKenzie, 25 S. D. 485, 127 N. W. 597, 49 L. R. A. (N. S.) 782, this court held that, where a mortgagor without objection permitted the purchaser at a foreclosure sale to take possession in good faith of the mort-factured by defendant with which the hogs gaged premises so sold in such sale, pay the had been vaccinated, complaint held to state a taxes, and make improvements thereon, hold good cause of action in negligence in preparing possession of the same for many years, al- the serum. though less than the statutory limitation, and thereby greatly increasing the value of the premises, that then and under such cir- In an action for death of hogs vaccinated cumstances the mortgagor, the former owner with serum manufactured by defendant, plainof such mortgaged premises, by reason of tiff, by showing that the serum was properly laches, was estopped to allege or claim, in administered and that the malignant edema a subsequent action, the invalidity of such causing death developed at the place where the foreclosure sale. We know of no reason serum was injected, established a prima facie why the same principle of law should not case, which the defendant could rebut by showing that the serum had been prepared accordapply in this case as against the appellanting to the approved method and carefully preplaintiff, and also against the appellant the Deadwood Gulch Mining Company, and estop them from now asserting the invalidity of the execution sales to Rogers. pared and properly tested, bottled, sealed, and labeled, and that all reasonable care had been exercised to exclude poisonous or deleterious matter. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |